Litigating a Personal Injury Case

If a personal injury claim cannot be settled, the injured party’s attorney must institute a lawsuit to push the case to trial. The attorney will draft two formal documents (a Summons and a Complaint) setting forth the allegations of negligence that caused the injuries. The injured party thereafter is known as the plaintiff. An index number is purchased at the courthouse and both documents get personally delivered (“served”) or mailed to those parties responsible for the accident/incident (known as defendants).

The defendants send the Summons and Complaint to their insurance company, and the insurance company forwards them to its attorney. The attorney then serves an Answer on the plaintiff’s attorney along with formal demands for specific information and documentation pertaining to the case. The plaintiff’s attorney then provides a Bill of Particulars and a Combined Response To Discovery Demands, which respond to any and all proper requests made by the defendant’s attorney. Simultaneously, the plaintiff’s attorney also serves formal demands upon the defendant’s attorney seeking information and documentation in their possession.

During this “discovery process,” the attorneys will go to court for a Preliminary Conference to enter into a stipulation signed by the judge setting forth a schedule for the pre-trial litigation phase of the case. Approximately 2-6 months after the conference, all parties will testify at an out-of-court procedure known as a deposition or examination before trial (“EBT”). Both sides will take an oath to tell the truth and will explain what happened. In addition, the plaintiff will testify about the injuries and the treatment to date.

Approximately 30-45 days after the depositions, the plaintiff will be examined by one or more doctors hired by the defendants’ insurance company. The defendant’s attorney will send the reports pertaining to these exams to plaintiffs attorney approximately 45 days thereafter.

Once all of this has happened, the plaintiff’ s attorney will file a legal document (called a Note of Issue) with the court stating that all of the pre-trial litigation has been completed and requesting a jury trial. Approximately 9-12 months thereafter, the case will be ready for trial. If a settlement cannot be negotiated, then a jury will decide who is at fault and how much money, if any, the plaintiff will receive.

This process generally takes about 2 years and often has many bumps in the road. Thus, you need an experienced, organized and detail-oriented attorney to lead you down the winding path to trial. If you’d like to discuss your case with that type of lawyer, call Michael Dreishpoon, Esq. (718-793-5555).

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